Monday, July 27, 2009

Jury: Comparable Juror Analysis: Ali v. Hickman, 584 F.3d 1174 (9th Cir. 2009) Amended Opinion

Ali v. Hickman (Warden), 571 F.3d 902 (9th Cir. 2009); Amended: 584 F.3d 174 (9th Cir. 2009) Note: The Supreme Court denied cert. in Ali v. Hickman on March 29, 2010 despite its decision in Berghuis v. Smith 130 S.Ct. 1382 (2010 ) reversing a Sixth Circuit decision discussing the policy of a fair cross section of the community in selecting jurors. Although the issues in both cases are not identical, the Supreme Court expresses its impatience with federal appellate courts who ignore AEDPA in the context of jury composition or selection. The Court in Berghuis said: "As the Michigan Supreme Court correctly observed, [no decision] of this Court specifies the method or test courts must use to measure the representation of distinctive groups in jury pools. The courts below and the parties noted three methods employed or identified in lower federal court decisions: absolute disparity, comparative disparity, and standard deviation;" Citations omitted. "Each test is imperfect. Absolute disparity and comparative disparity measurements, courts have recognized, can be misleading when, as here, 'members of the distinctive group comprise [only] a small percentage of those eligible for jury service.' And to our knowledge, '[n]o court ... has accepted [a standard deviation analysis] alone as determinative in Sixth Amendment challenges to jury selection systems.'; *** In an unusually harsh and critical decision in Hickman, a Ninth Circuit panel criticized the California Court of Appeal for affirming a conviction in state court and subsequently denying a petition for habeas corpus. In the petition for habeas corpus filed in federal court, the three judge panel characterized the Court of Appeal decision as "incorrect" and "unreasonable." The panel similarly used derisive language in dismissing the California Attorney General's argument attempting to justify the conviction. The U.S. District Court refused to issue a writ of habeas corpus but survived intemperate language written by the panel on appeal. The irony: this Ninth Circuit panel decision is wrong; completely wrong, and has written an indefensible opinion without any citation of relevant authority and in defiance of the Anti Terrorism and Death Penalty Act (AEDPA). To begin, the trial court committed no evidentiary error, no instructional error, no prosecutorial misconduct, and jurors committed no misconduct. The panel also avoided ruling on an allegation of "ineffective counsel", the frequent ground for reversal when the Ninth Circuit can unearth nothing else. The only ground for appeal lay in voir dire of the jury. When a federal court reviews a state court conviction on habeas corpus, the standard of review is narrowly circumscribed under AEDPA; 28 U.S.C. 2254. AEDPA standards constrain review of state convictions, and the issue of discriminatory use of peremptory challenges on racial grounds does not come to the Ninth Circuit for independent judgment on whether the state courts acted correctly or incorrectly, but for consideration of whether the state court's adjudication on the merits "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding; 28 U.S.C. 2254 (d); Lockyer v. Andrade, 538 U.S. 63 (2003). In challenging a prosecution decision to excuse a juror on racial grounds during voir dire, the Ninth Circuit panel holds that the trial court must conduct a "comparative juror" analysis. The absurdity of this rule, an appellate court reviewing a trial court record without ever seeing the juror's demeanor, attitude, language, excuses or innumerable other factors suggesting to the prosecutor a reason to excuse a minority juror, is demonstrated in Ali v. Hickman. At trial, counsel for Ali objected to the prosecutor exclusion of two minority jurors; the court held a hearing; the prosecutor laid out the reason for the decision; the court found the prosecutor's rationale not based on race and denied the defendant Ali's motion. At no time did counsel request a comparative jury analysis.

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